#19888 - Commentary On Evans - Constitutional Law

R (Evans) v Attorney General

Estelle Dehon

Public interest. Interesting that the court now thinks itself capable of deciding what is in the public interest – is this not political? (My opinion).

Jo Eric Khushal Murkens – Judicious review

What’s the proper relationship between the judiciary and legislature? Role of UKSC is not to mechanically give effect to parliamentary intention. Courts generate their own kind of legitimacy through adherence to law and the constitution. Author thinks judicial review cannot be justified with reference to constitutional law, but instead democracy.

Bickel and Waldron think constitutional review is an illegitimate constraint on the principle of political participation – ordinary people can’t take part and influence the political decision-making process leading to the creation of laws with which they must comply. But the UK doesn’t have constitutional review. Craig: ‘the essential dividing line between supporters and opponents of the ultra vires model is as to how far legislative intent can provide a satisfactory explanation for the norms which constitute judicial review’. It’s important to consider most political constitutionalists would not do away with judicial review, nor would legal constitutionalists advocate for the sovereignty of the courts.

Alison Young concludes the differences are ones of degree, not kind. It’s whether you want more legal or more political controls, not whether you want one or the other. On whether judicial review is consistent with majoritarian government, Young finds no conclusive proof for any argument and the supposed rivalry is just a labelling exercise. Tomkins accepts validity on both sides – it’s undemocratic for unelected and unrepresentative judges to rule over constitutional questions, but judicial intervention is needed to prevent the majority trampling over minority rights.

Martin Shapiro is critical of how the judicial function to give effect to Parli’s will operates against the courts. He doubts the courts can be independent of politics if the will of parliament, a political branch, tramples the courts. But, the courts have developed principles of common law like the rule of law. However, it is not a stretch to say judges make law. ‘If judges make law’ says Shapiro, ‘then judicial independence is a very problematic value in a democracy’. Shapiro thinks judicial review from the common law v PS involves ‘paradox, conflict, ambiguity, and unresolved tensions.

Justifying judicial review

1. Democracy

Protecting democracy’s structural conditions, contradicting Bickel that review is undemocratic. Ely is concerned with preserving the integrity of majoritarian legislative procedures, with which review cannot be reconciled on a narrow view. However, a decision does not become right because a majority says so – this would be an extreme majoritarian view.

Skipped – not Evans

As for Evans, Murkens thinks Lord Neuberger’s denial that the AG held a veto power would not be out of place in a court with constitutional review powers. The dissenters – Lord Hughes and Wilson – fluster references to parliamentary sovereignty. Lord Hughes says that, although unusual, Parliament has chosen to allow a minister to override a judicial decision. Lord Hughes acknowledges the rule of law, but does not see it in the structural sense as Freeman does. It is perhaps a fixed constant of our constitution, but not so fixed or so constant that it withstands PS. Lord Wilson is on the same wavelength, referring to PS as ‘the most precious’ constitutional principle, ‘emblematic of our democracy’. This, although Murkens is more nuanced, is essentially an argument of majoritarianism v countermajoritarianism, but not of extremes. The rule of law is counter, the unqualified sovereignty of parliament is majoritarianism. Idea: use judge’s qualifications of PS as evidence toward a more countermajoritarian democracy, and therefore legal constitution.

James Grant – Unconstitutional Interpretation

Unconstitutional statutory interpretation is interpretation contrary to the unwritten rules of our unwritten constitution. One of these rules is Hart’s rule of recognition.

Neuberger thought an executive power to override a judicial decision, despite that power being conferred by parliament, was contrary to the rule of law. Lords Hughes and Wilson – the dissidents – I think were right to argue that the majority re-wrote the statute. The problem is, if they wanted to preserve the...